Digital Privacy a Pivotal Issue for New Supreme Court

There is at least one issue on which the justices have spoken with a relatively unified voice, and on which senators from both sides of the aisle should be united: an individual’s right to privacy in the new digital age.

President Donald Trump is expected to announce a nominee for the Supreme Court as early as this evening. This person will fill the seat that became empty when Justice Antonin Scalia passed away last February, and remained empty as Republicans blocked President Obama from filling it. The nominee – who is likely to come from a three-man short list[3] – will be questioned closely by the Senate Judiciary Committee about his perspectives on abortion, Second Amendment interpretation, voting rights, and more. The liberal and conservative wings of the Court have often disagreed on these issues, and Republican senators will push to ensure that the nominee shares their views.

There is at least one issue, however, on which the justices have spoken with a relatively unified voice, and on which senators from both sides of the aisle should be united: an individual’s right to privacy in the new digital age. Two recent cases illustrate the Supreme Court’s strong stance.

In the first, U.S. v. Jones[4], the FBI and Washington, DC police attached a GPS tracker to the car of a suspected drug dealer, Antoine Jones, without a valid warrant. The tracker monitored the car’s location with near-precision for a month, ultimately sending over 2000 pages of data via cell phone to a government computer. Based in part on this information, Jones was sent to prison for conspiring to distribute drugs.

Longstanding Supreme Court precedent suggested that individuals have no expectation of privacy when they drive on public roads or walk on public streets. The government argued that this was no different: if police officers can already follow anyone in public without a warrant, using cutting-edge technology to do so should not create a federal case. But a month of GPS tracking seemed to implicate something more insidious; Jones was monitored for so much longer than any one officer could reasonably accomplish on his own, and at so much less cost.

When the case reached the Supreme Court, the nine justices agreed that tracking Jones’s location in this way without a warrant violated the Fourth Amendment to the U.S. Constitution. Justice Scalia, writing for the Court, set out a fairly narrow legal argument: by attaching the tracker to Jones’s vehicle, law enforcement officers had trespassed on Jones’s car and therefore “searched” it.

In concurring opinions, however, Justices Alito and Sotomayor expressed far broader concerns about how long-term, inexpensive location tracking could facilitate invasions of privacy. Justice Alito, joined by three other justices, warned that such enduring surveillance would undermine reasonable expectations of privacy, particularly in light of the rapidly dropping costs of electronically-enabled tracking. He concluded that tracking Antoine Jones’s every movement for four weeks without a warrant was so invasive that it violated the Fourth Amendment.

Justice Sotomayor was particularly concerned about the personal information that ongoing location tracking could yield. She observed that GPS tracking can reveal a “wealth of detail” about an unknowing subject’s “familial, political, professional, religious, and sexual associations,” and that the government can store the records it produces and plumb them for information for years. At the same time, because GPS and similar electronic monitoring is relatively cheap and surreptitious, it “evades the ordinary checks” that might otherwise restrict their use: limited resources and community opposition.

Taken together, these opinions were a major turning point, confirming that “privacy in public” is not an oxymoron.

Two years later, the Court took on another aspect of digital privacy: smart phones. In Riley v. California[5], the police arrested David Riley after stopping him for a traffic violation and finding loaded firearms under his car hood. A detective looking through his phone after the arrest came across incriminating videos and pictures, which were eventually used to convict him for previous crimes. He challenged his conviction, arguing that searching his phone without a warrant violated the Fourth Amendment.

In a surprise to observers, the Supreme Court unanimously agreed. The justices noted that police are generally permitted to search items on an arrestee’s body, such as wallets, purses, cigarette packets, and more, to determine if the person is armed or carrying “contraband.”. But they also pointed out that even the most basic cell phone could hold pictures, texts, online browsing history, calendar entries, and contact information for friends, family, and associates. Cell phones could also hold sensitive Internet browsing data, apps that reveal political and religious affiliations, and even minute-by-minute location information.

In light of that wealth of sensitive information, the justices observed, analogizing a search of a purse to a search of a cell phone was “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Thus, after Riley, police who want to search the cellphone of a person they have arrested must get a warrant.

The Court’s positions on privacy should be a matter of common concern for the senators leading the new nominee’s questioning, whether they are avowed civil libertarians or not. After all, Justice Scalia was a compelling voice on these issues; choosing someone who is a vigorous defender of individual rights would continue his legacy. And even lawmakers who have given little thought to privacy in the past might wish to develop a more active interest, given the new president’s expressed desire to expand governmental surveillance capabilities – including proposing to monitor Muslim communities[6] in the U.S. and nominating for Attorney General a man who helped derail efforts[7] to require a warrant for police to read old emails. Democrats and Republicans can find common ground in ensuring the president’s nominee understands, and is committed to, the Court’s strong stance on privacy.